News In Focus
7 December 2006
Ombudsman and Society agree to disagree
The Scottish Legal Services Ombudsman, Jane Irvine, has published newspaper notices recording that the Society had declined to accept her view that two complaints had not been properly investigated. Speaking to the Journal following the publication, however, Ms Irvine emphasised that this was the only sanction available to her in such circumstances, and that she was not simply seeking to have a fight with the Society.
“In these two cases the Society and I have agreed to disagree”, she said. “We both have a job to do. The Society deals with the actual complaint, and in simple terms, I am here to check that they do that properly. Often cases are dealt with properly. However in any complaints system things will go wrong and when they do my job is to identify this. I try to get errors corrected and often they are. I also try to deal with matters constructively, encouraging good practice to reduce the number of complaints, not merely by criticising.”
Learning points
A lesson the Ombudsman would like to be drawn from one of the publicised cases is that all reporters should at least show they have heard what the complainer is saying, and if they reject it, clearly explain why it is not supported by evidence. She said it appeared to her that the reporter considering the case had not echoed the complainer’s arguments within his report. Had the complainer’s evidence been noted, even if dismissed as having no validity, the Ombudsman feels that a complaint to her might have been avoided and certainly she would not have criticised its handling by the Society.
In the second case, which the complainer originally said was about quality of advice in a loan transaction, the Ombudsman said the overall sense of the complaint had been lost by the way the Society had redefined issues. She called for a reinvestigation, but hopes that ultimately a fresh way of defining complaints will emerge. In response the Society said it had followed its normal procedures in agreeing the issues with the complainer.
Need to feel listened to
Ms Irvine explained: “In any modern complaint system it is essential that, even if complaints do not succeed, those complaining feel they have been listened to. In these cases complainers came to me as they did not feel the Society had listened to them, and I had to agree.”
In response to the published notices, Ruthven Gemmell, President of the Society, said that the Society might reconsider its handling of individual cases on the Ombudsman’s recommendation, but added: “We are not prepared to simply agree with the SLSO to avoid potentially unfavourable press comment, and will continue to consider recommendations solely on their merits in each case.”
The Ombudsman said these cases were unusual, as in the majority of the cases that came to her office, she found the Society had handled complaints satisfactorily, or they accepted her recommendations. She recognises that many individuals work hard to deal with complaints within the Society. However, although the current system means the Society must investigate, unfortunately it is still perceived by complainers as adversarial – and some solicitors treat it as such. “If Society were more open about its investigatory role, it might help them to present the way they do things better”, she commented. “Similarly, if there was scope for a more proportional response or mediation in many cases, complainers might feel better served by the system.”
Finally, Ms Irvine stressed that her role was to review the work of the Society or the Faculty of Advocates. “I am not here to judge practitioners. I recognise complaints arise and practitioners will be subject to them. My aim is simply to work constructively to improve complaint systems for all who become involved with them.”